As I'd mentioned last August, the Second Circuit certified the following question to the New York Court of Appeals:
Is a claim of conversion cognizable for electronic data?
Last Thursday, in Thyroff v Nationwide Mut. Ins. Co.,
2007 NY Slip Op 02442, the New York Court of Appeals held that under the facts of this particular case, a conversion claim may be maintained.
In this case, the plaintiff was an insurance agent for the defendant and as part of the employment arrangement, leased computer hardware and software from the defendant. When the employment relationship was terminated by the defendant, the defendant repossessed the computers and all electronic records and data, thus rendering the plaintiff unable to access his customer data and other personal information stored on the computers.
After examining the historical background for the tort of conversion, the Court concluded that:
(I)t generally is not the physical nature of a document that determines its worth, it is the information memorialized in the document that has intrinsic value. A manuscript of a novel has the same value whether it is saved in a computer's memory or printed on paper. So too, the information that Thyroff allegedly stored on his leased computers in the form of electronic records of customer contacts and related data has value to him regardless of whether the format in which the information was stored was tangible or intangible. In the absence of a significant difference in the value of the information, the protections of the law should apply equally to both forms — physical and virtual.
In light of these considerations, we believe that the tort of conversion must keep pace with the contemporary realities of widespread computer use. We therefore answer the certified question in the affirmative and hold that the type of data that Nationwide allegedly took possession of — electronic records that were stored on a computer and were indistinguishable from printed documents — are subject to a claim of conversion in New York. Because this is the only type of intangible property at issue in this case, we do not consider whether any of the myriad other forms of virtual information should be protected by the tort.
Whew. That's a relief, isn't it? I sometimes worry that technology is changing some areas of our lives at such a rapid pace that other social constructs, such as the dinosaur that we call the "law", can't, or simply won't, keep up. It's nice to see the Court of Appeals bending ever so slightly to accommodate the newfound and ever-increasing "virtual" aspects of our lives.